DETENTION AND DENIAL: THE CASE FOR CANDOR AFTER GUANTÁNAMO

Reviewed by Genevieve Lennon, School of Law, University of Dundee. Email: g.obroinlennon [at] dundee.ac.uk.

pp.380-383

The photographs of inmates in their orange jumpsuits in Camp X-Ray in Guantanamo Bay remains one of the enduring images of the ‘War on Terror.’ While President Obama has pledged to close Guantanamo, neither he nor his opponents have articulated a coherent policy detailing the objectives of or the controls over the counter-terrorist detentions of the type occurring in Guantanamo and Bagram. A similar obfuscation is evident in relation to counter-terrorist detentions which occur squarely within the criminal justice system, where suspects have been held under the material witnesses statute or under immigration law, rather than under the criminal law for terrorism offences. In DETENTION AND DENIAL: THE CASE FOR CANDOR AFTER GUANTANAMO, Benjamin Wittes pleads for coherence and honesty in relation to the policy of what he terms ‘preventative detention.’ Drawing on his experience as a senior fellow in Governance Studies at the Brookings Institution and his work with the Hoover Institution Task Force on National Security and Law, Wittes sets out to convince readers of the urgent need for a principled and open approach to preventative detention which is, and Wittes argues will continue to be, a feature of American counter-terrorism policies. He succeeds comprehensively in his task, outlining with clarity and brevity the current state of preventive detention and why a considered position must be taken in relation to its future, rather than continuing the present approach of lurching from legal crisis to legal crisis, blindly hoping that the current problems will fade from memory and not recur. The book is a ‘short, big-picture book’ explicitly aimed at ‘the general interest reader’ that avoids getting bogged down in legal technicalities or jargon, while remaining of interest to specialists who want a brief overview of the subject (pp.vii; ix).

The introduction highlights the moral, political and legal imperatives in developing a coherent policy towards counter-terrorist preventative detention. Chapter 1 outlines current US policy. Wittes argues that Obama’s promise to close Guantanamo is ‘a complicated symbolic gesture . . . replete with conflicting signals’ (p.20). On the one hand it signals a break with the Bush-era triumphalism; an acknowledgment ‘that there is something lawless and disreputable about’ Guantanamo and something shameful more generally about preventative detention. On the other, preventative detention continues out of sight and beyond the domestic courts’ jurisdiction at other facilities, such as Bagram, or suspects are passed to ‘proxies,’ such as the Afghan or Iraqi military or police. Wittes argues that ‘[c]losing Guantanamo . . . is not a repudiation of detention. It is a repudiation of detention at Guantanamo, [*381] a repudiation of detention in the open’ (p.21). He suggests that the ‘shame’ around preventative detention incentivises the military to carry out renditions and targeted killings, a corollary of which is a decrease in intelligence gathering. Wittes argues that, while the status quo is manageable, it rests on a series of fictions: that numbers of detainees will not peak again; that proxies will continue to be able to take the majority of detainees; and that the judiciary will not expand their jurisdiction beyond Guantanamo.

Having established that the US has not stopped using preventive detention, but instead has sought to ‘deny’ it, Wittes aims to demonstrate, in Chapter 2, that there is no need to feel shame about preventative detention as, contrary to popular mythology, there is no proscription against it in American law. In support of this thesis Wittes cites wartime detention, including the detention of civilians, the habeas corpus suspension clause in the Constitution, the detention of immigrants pending deportation; pre-trial detention; the detention of material witnesses; detention consequent to quarantine; and, protective detention or custody, for example, of the mentally ill or intoxicated persons (p.35). He analyses these examples and concludes that counter-terrorist preventative detention ‘fits relatively comfortably in conceptual terms alongside other detention authorities’ and is evolving ‘as a specialized example of the broader category of detention of unlawful combatants’ (p.56). The common thread for Wittes between these varied examples is the necessity to ‘prevent grave public harms’ (p.35). This analysis muddles various types of different legal systems into one. The laws of war are not transposable to the ‘ordinary’ criminal justice system. Similarly, the rules invoked at borders, particularly in relation to non-nationals, have always differed significantly from those applied elsewhere within a country. This is not to suggest that there is no merit in the argument; there is a long history of laws allowing agents of the State to move pre-emptively against persons for offences they had not yet committed (see, for example Dershowitz 2006). It is, however, to suggest that thesis would benefit from being more closely argued, with differentiation between the branches of law. Given Wittes’ frequent conflation of military and criminal justice systems it may be that he is proposing a melding of the military and criminal justice systems in relation to counter-terrorism. If so, a discussion of the merits and potential pitfalls of such a proposal would have been beneficial.

Wittes tentatively outlines the current law arising from the Guantanamo habeas corpus cases in Chapter 3, acknowledging the likelihood that the legal landscape will have again shifted by the time of publication. He lays bare the inconsistencies which have arisen in the case-law and highlights the detrimental impact this uncertainty has on the military in terms of all operational decisions and not merely detention. While there are some areas of clarity, for instance that the burden of proof rests with the Government, many central issues are treated differently by different district judges. These include the basic question of who can be detained under the Authorisation of the Use of Military Force (AUMF); what constitutes ‘reliable’ hearsay evidence; and what approach to take to when it is alleged evidence was gathered through coercion. [*382] The outcome is that ‘detainees freed by certain district court judges would likely have had the lawfulness of their detentions affirmed if other judges with different standards had heard their cases’ (p.65).

In Chapter 4, Wittes argues that the refusal to have an open debate and considered policy on preventative detention leads to bad and incomplete policy. He highlights problematic areas, focusing on two scenarios. The key features of the first scenario, the ‘acute’ or ‘crisis’ detention scenario,’ are: ‘time pressure, high political and security stakes, imperfect information requiring further intelligence, and the absence of an obvious proxy,’ which may mean the criminal justice system is unavailable or there is ‘no foreign proxy available to do a long-term detention’ (p.99). Wittes argues that trying to shoehorn such detentions into the criminal justice or military detention systems may succeed on occasion, but such success will be haphazard. Broadly he views the former as delivering in terms of the need for retribution, long term incapacitation and legitimacy, while the latter delivers more consistently in terms of intelligence because of its relative weakness in relation to procedural safeguards. The second scenario concerns US forces needing to detain large numbers of suspected enemy combatants who are members of irregular forces and so difficult to identify. Wittes argues the criminal justice system is inappropriate in such a scenario as it cannot process large numbers of detainees at the required speed and the evidence against the suspects would not stand up in a criminal case. However, the prisoner of war model is also inappropriate. Wittes convincingly argues that many aspects of contemporary warfare ill-fit the legislative clothing of the Geneva and Hague Conventions and associated domestic law pertaining to conduct during war.

In Chapter 5, Wittes sketches a policy of ‘candor’ that would address the failings he has highlighted in the previous Chapters. He sets out four tasks: to optimize criminal justice capacity; to come to an agreement regarding ‘legacy detentions;’ to agree to procedures to govern military detentions; and, to agree how to deal with ‘hybrid’ suspects, that is those who are suspected criminals and fighters. For Wittes the major disadvantages with the criminal justice system are its inability to deal with large numbers of detainees and its occasional failures in relation to intelligence gathering, arising from procedural rights. To address the latter, Wittes advocates a ‘grace period’ when uninterrupted interrogation can take place, presumably without the right to silence or legal advice, suggesting this period would last ‘a small, specified number of days,’ subject to ‘high level political certification’ (p.124). This ‘grace period’ bears some resemblance to the UK’s ‘public safety interviews,’ which can be invoked if a delay in interviewing the terrorist suspect might hinder the recovery of property obtained criminally or lead to interference with or harm to evidence, property or other people or the alerting of other suspects (PACE, Code H, para. 11.2). In such circumstances the suspect will have no access to a lawyer and there will ordinarily be no audio or video recording of the interview. These were used in relation to the 21/7 bombers and evidence procured during the interviews was successfully introduced during trial [*383] (R v IBRAHIM). More generally, terrorist suspects’ right to silence (which is in any event not absolute (MURRAY (JOHN) v UNITED KINGDOM)), their right to have a person informed of their detention, and their right of access to a lawyer may be delayed for up to 48 hours under the Terrorism Act 2000, Schedule 8.

In relation to ‘legacy detentions,’ Wittes’ suggestions are predicated on the belief that the habeas corpus rulings will, or at least may, become the core of ‘a nascent system’ of detention that will recur and that decisions which significantly impact upon the military should be decided by the executive or legislature, not the judiciary (p.127). He therefore calls on Congress to address key questions such as: what evidence is required to hold a suspected combatant under the AUMF? What are the evidentiary rules? Who reviews the evidence? The third task, involving procedures for future military detentions, is addressed simply: Congress should explicitly authorise in what circumstances it wants the military to detain suspects. Finally, in relation the ‘hybrid suspect,’ Wittes proposes a law that would permit the Executive to summarily detain such a suspect for up to fourteen days at which point judicial authorisation would be required. If granted, this would permit detention for up to a further six months, which would be renewable indefinitely while the court continued to approve the president’s belief that the suspect posed an ‘imperative threat to security’ (pp.136-137). This suggestion can be criticised on several fronts, for instance, that judicial oversight should not be delayed for fourteen days and that six month extensions are disproportionate. On the other hand, its limitation to non-citizens, while perhaps constitutionally necessary, ignores the potential for hybrid ‘home-grown’ or ‘neighbour’ terrorists (see Walker 2007). However, the idea is only briefly sketched and, as underlined in the Conclusion, Wittes is less concerned with approval of his suggested law than with the general acceptance of the need to determine some law and to squarely face the issue of counter-terrorist preventative detention.

Wittes’ central thesis, that the denial of the present and future use of preventative counter-terrorist detention lacks moral or legal legitimacy and confounds common sense, is utterly convincing. Whichever side of the ideological fence one sits on, it is impossible to deny that clear and foreseeable rules are preferable to ad hoc and inconsistent justice.